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Himachal Pradesh High Court · body

2001 DIGILAW 247 (HP)

OM PRAKASH v. STATE OF H. P.

2001-09-21

A.K.GOEL

body2001
JUDGMENT Arun Kumar Goel, J :- This revision petition has been filed by Om Parkash against the judgment dated 19.,7.1999, passed by learned Sessions Judge, Bilaspur in Criminal Appeal No.32 of 1995. while dismissing his appeal, conviction and sentence imposed by the chief Judicial Magistrate, Bilaspur in case No.93-II/94 on 11.10.1995, has been upheld. Om Parkash (hereinafter referred toas the petitioner) was convicted under Section 279 of the IPC to undergo four months simple imprisonment as also to pay a fine of Rs.500/-; and under Section 337 IPC he has been directed to undergo three months simple imprisonment and also to pay a fine of Rs.300/-. In default of payment fine, petitioner was directed to suffer further simple imprisonmet for two months. Both the sentences were to run concurrently. 2. Learned counsel for the petitioner submitted that both the courts below have fallen into error while holding his client guilty for the aforesaid offences. As according to him, there was no legal evidence for upholding the conviction and sentence imposed upon the petitioner. Thus he has prayed for allowing this revision petition. 3. Brief facts giving rise to this case are that on 20.3.1994 at( about 5 P.M. petitioner was driving truck bearing Registration No.HIB-1181, in a rash and negligent manner endangering human life, and putting the personal safety of others in jeopardy. It was being driven on the wrong side. Because of these reasons in hit Maruti Gar No.CH-OlH- 5872. This car was being driven by Hem Singh Thakur PW-1 (hereinafter referred to as the complainant). 4. As a consequence of this accident, damage was caused to car and its occupants viz PW-1 Hem Singh Thakur, his wife PW-2 Anita thakur and his mother-in-law Smt. Urmila Thakur, all were injured. Further case of the prosecution, to which effect there is positive evidence, is that the impact of the accident was such that the truck which was on uphill journey towards Mandi and car was going towards Hoshiarpur side, that the car got turned in the opposite direction. 5. The aforesaid three injured persons were removed to District Hospital, Bilaspur, from where intimation was sent to the police when statement Ex. PA of the complainant was recorded. On the basis whereof FIR Ex PB was registered at Police Station Sadar, Bilaspur. 5. The aforesaid three injured persons were removed to District Hospital, Bilaspur, from where intimation was sent to the police when statement Ex. PA of the complainant was recorded. On the basis whereof FIR Ex PB was registered at Police Station Sadar, Bilaspur. Three medico legal certificates of the three injured persons in the accidet in question have been placed on record as Exh.PW-8/B to Exh.PW-8/D. Spot map Ex .PC wasprepared and truck in quesiton was taken into custody vide memo Ex. PD. Documents of the truck in quesiton as also broken pieces of the glass of the Car were taken into possession. Police got both vehicles mechanically examined vide Ex.PW4/A and Ex.PW4/B. Photographs of the spot were also taken which have been proved on record as Ex. PBl to Ex.PB5. When a reference is made to the prosecution evidence, which was read over in its entirety by Mr. Yoginder Paul as well as for the reasons to be recorded hereinafter, no exception can be taken to the conviction and sentence imposed upon the petitioner by the trial Court and the same having been upheld in appeal. 6. From the statement of the complainant as PW-1, it is clear that he has pledged his oath while appearing as a witness. Per him he was on his way from Mandi Town to Hoshiarpur. After he had reached near Chharol, truck in question which was being driven in a rash and negligent manner on the road. This resulted in witness becoming un-conscious, however he gained conscious-nessess after about 15 minutes when he found that not only he but also his wife Anita thakur (PW-2) and his mother-in-law Urmila Thakur were also injured as , a result of this accident. All of them were removed to hospital. His cross-examination does not in any manner dislodge his this version. He has further stated that he made all out efforts to take his vehicle on the extreme side but there was hill side of the road. He has denied the suggestion on behalf of the petitioner that he was driving his car at a high speed which resulted in the accident in question. No doubt in his cross-examination, he has further stated that the speed of his car was 35-40 KMs per hour. He had seen the truck from a distance of 100- 150 feet. He has denied the suggestion on behalf of the petitioner that he was driving his car at a high speed which resulted in the accident in question. No doubt in his cross-examination, he has further stated that the speed of his car was 35-40 KMs per hour. He had seen the truck from a distance of 100- 150 feet. He made an attempt to stop his car, however, in the meantime truck struck against it. He admits he was on the down hill journey. 7. To similar effect is the statement of PW-2 Anita thakur. She has further stated that truck after leaving its left side on the road came towards its right side and struck against their car. As a result of which, the car which on its way from Mandi to Hoshiarpur turned and faced towards opposite side. She has denied the suggestion that the truck was being driven on the left side of the dividing white line which was in the centre of the road. PW-4 is the constable Dev Raj who had examined the vehicles in quesiton. PW-8 is Puran chand, Investigating Officer. According to him on receipt of information from the district Hospital, Bilaspur regarding accident, he accompanied by ASI Krishan Kumar went there. Statement of Hem Singh thakur under Section 154 Cr.P.c. was recorded and was sent to the police Station for registration of the case. This is Ex. PA and on its basis FIR Ex .PB was registered. He took into possession the truck and broken piecs of glass and other documents of truck. It was suggested on behalf of the petitioner in cross-examination to this witness that on the spot there is slight ascent. He, however, stated that there is a curve. He has proved the spot map prepared by him, Ex. PC. At the spot pucca portion of the road is 26 feet wide whereas it has 4 ft. kacha portion on its wester side and 2ft. on its eastern side Ex.PC further shows that the front right tyre of the truck was on the edge of the pucca portion of the road and rear right side tyre was 2 ft. away from the road. Maruti car in question had its front towards Bilapur side. 8. From the evidence on record it cannot be said that the driver of the car was negligent in any manner. away from the road. Maruti car in question had its front towards Bilapur side. 8. From the evidence on record it cannot be said that the driver of the car was negligent in any manner. In this behalf it may also be appropriate to notice that on the highway when the petitioner was driving a heavy vehicle, he was required to be more careful and cautious to prevent occurrence of accident of the present nature, this does not mean that the driver of a light/smaller vehicle has not to be vigilent while on road. Only thing is that duty upon the driver of the heavy vehicle is more onerous to ensure that by his acts of omission and commission safety of others is not put in jeopardy. 9. An attempt was made on behalf of the petitioner to take advantage form some omissions in the statements of PWs 1 and 2 by showing that the are in fact in the nature of major contradictions, when a reference is made to those it cannot be said that those in any manner dislodge the case of the prosecution so as to completely oust it. 10. In this behalf it may also be noted that accident is not denied even by the petitioner. His only explanation in his statement under Section 313 Cr.P.C. as well as in the suggestions give in cross- examination of PWs 1 and 2 is that he was going in a slow speed being loaded with coal on the left side of the road and was on ascent, there was thick fog as also there was blind curve at the spot. He further claims that driver of the caY (i.e. PW-1 the complainant) was in speed and failed to control his vehicle on the curve and thus hit the truck. Otherwise he claimed to be innocent. 11. This position is belied not only from the statements of PWs land 2 but also by the photographs Ex. PB 1 to Ex.PB-5. It may be reiterated that the impact of the accident; was so much that the vehicle coming from Mandi to Hoshiarpur turned towards Bilaspur. In the face of this position, no benefit can be derived by the petitioner from the so called omissions. 12. Lastly it was submitted that because Of fog and there being blind curve negligence, if any, was on the part of the car driver. In the face of this position, no benefit can be derived by the petitioner from the so called omissions. 12. Lastly it was submitted that because Of fog and there being blind curve negligence, if any, was on the part of the car driver. Thisplea cannot be accepted in the face of their being otherwise over- whelming evidence to the contrary. Here it may be clarified that negligence within the meaning of Section 279 of the IPC would mean breach of a duty caused by omission to do something which a reasonable man guided by such considerations which ordinarily regulate conduct of human affairs and would do or the doing of something which a prudent and reasonable man would not do. 13. To constitute a rash act, it is exfacie over hasty but is opposed to a deliberate act. However, it also includes such an act which may be said to be deliberate, is yet done without due deliberation and caution. As such to constitute criminal rashness, it has to be a hazardous and dangerous or wanton act with the knowledge that it is such which may cause injury though it was never intended to cause the same nor the person committing such an act had the knowledge. 14. In fact, element of criminality lies in running the risk without caring for its consequences. In a given case driving al a high speed on a public road by itself will prima facie constitute an act of rash driving. Relevant factor that needs to be determined whether the person committing such an act was rash or negligent. In performing an act the standard of reasonable care would be which is reasonably to be expected depending upon,a circumstance of each case. If it is proved that despite all out care and caution atcident occurs, a person cannot be said to be rash and negligent so as to hold him criminally liable within the meaning of Sections 279 and 337 of the IPC. I am further of the view that mere I error of judgment by itself will not constitute rash and negligent act on the part of the person charged for it; something more than that has to be established. I am further of the view that mere I error of judgment by itself will not constitute rash and negligent act on the part of the person charged for it; something more than that has to be established. In Bhal Chandra v. State of Maharashtra" MR 1968 SC 1319 what was observed and is relevant in this case was as under: "Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable or proper care and precaution to guard against injury either to the public generally or to an individual in particular which having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted." 15. In this behalf it may also be noted that there has to be direct nexus between the rash and negligent act of an accused as well as endangering of human life and/or resting in injury to such a person. 16. Thus on over all examination of the whole, case, and applying the aforesaid tests to the facts of the present case, it cannot be said that courts below were wrong in coming to the conclusion arrived at. The judgment does not call for any interference. 17. As a result of the aforesaid discussion, there is no merit in this revision petition, which is accordingly dismissed, the bail bonds furnished by the petitioner shall stand concelled. He shall surrender forthwith to undergo the sentence imposed on him.